Director of Public Prosecutions v Beardsmore (a pseudoynm
[2022] VCC 2280
•14 December 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL jurisdiction
SEXUAL OFFENCES LIST
Indictment No.M11903112
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JEREMY BEARDSMORE[1] |
[1] A pseudonym.
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 17 November 2022 | |
DATE OF SENTENCE: | 14 December 2022 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Beardsmore (a pseudoynm | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2280 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of sexual penetration of a child or lineal descendant – plea of guilty – both the complainant and offender affected by an intellectual disability
Legislation Cited: Crimes Act 1958, s50C [as amended by the Crimes Amendment (Sexual Offences) Act 2016], s50K; Sentencing Act 1991, s3, s5, 5(2G), s5(2H) and s11A; Sexual Offenders Registration Act 2004, s6(1), s7(1)(a)
Cases Cited:Phillips v R [2012] VSCA 140; Worboyes v R [2021] VSCA 169; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Muldrock v R (2011) 244 CLR 120; Langton (A Pseudonym) v R [2022] VSCA 79; DPP v Dalgliesh (A Pseudonym) [2017] VSCA 360
Sentence: Total effective sentence of 2 years 6 months imprisonment with a non-parole period of 18 months; 463 days of pre-sentence detention reckoned as time served; registrable offender pursuant to the Sex Offenders Registration Act for 15 years; 6AAA declaration – 4 years imprisonment with a non-parole period of 22 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. Van Arkadie | Victoria Legal Aid |
HIS HONOUR:
1Jeremy Beardsmore, on 17 November 2022, you pleaded guilty to the following charge on Indictment No.M11903112:
(a) That you, at Gippsland in Victoria, between 1 July 2021 and 31 August 2021, intentionally sexually penetrated Sarah Beardsmore[2], a person you knew to be your child, in that you introduced your penis into her vagina.
The offence of sexual penetration of a child or lineal descendant is contrary to s50C of the Crimes Act 1958 [as amended by the Crimes Amendment (Sexual Offences) Act 2016] and carries a maximum penalty of 25 years' imprisonment.
[2] A pseudonym.
2This charge is also subject to the standard sentencing scheme, which was introduced by the Sentencing Amendment (Sentencing Standards) Act 2017. That Act introduced standard sentencing for various serious offences committed on or after 1 February 2018.
3In particular, s50C of the Crimes Act 1958 states:
'(1) A person (A) commits an offence if—
(a) A intentionally—
(i) sexually penetrates another person (B); or
(ii) causes or allows B to sexually penetrate A; and
(b) B is A's child or lineal descendant; and
(c) A knows that B is A's child or lineal descendant.
'(2)A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).
'(3) The standard sentence for an offence against subsection (1) is 10 years if B is, at the time of the offence, under the age of 18 years.'
4Section 50K of the Crimes Act 1958 also provides that it is not a defence to such a charge that B consented to the conduct constituting the offence.
5Furthermore, s3 of the Sentencing Act 1991 defines a 'category 1 offence' to include an offence under s50C(i) of the Crimes Act 1958, 'If the victim was, at the time of the offence, under the age of 18'.
6Section 5(2G) of the Sentencing Act 1991 states that, subject to sub-s(2GA), in sentencing an offender for a category 1 offence a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with s44).
7You are also subject to the provisions of the Sex Offenders Registration Act 2004 (SORA). Under that Act, a 'registrable offender' is defined as a person whom a court has sentenced to a 'registrable offence' [see s6(1) of the SORA].
8A 'registrable offence' includes class 1 offences committed as an adult.[3] Class 1 of Schedule 1 of the Act lists a class 1 offence as an offence against a provision of Subdivisions 8A to 8FA of Division 1 of Part 1 of the Crimes Act 1958, which involves sexual penetration where the person against whom the offence is committed is a child.
[3]See s1(a) of the Sex Offenders Registration Act 2004.
9The subject offending, the offence of sexual penetration of a child or lineal descendant, is contrary to s50C of the Crimes Act 1958 and is contained in Subdivision 8C of Division 1 of Part 1 of the Crimes Act 1958. In such circumstances, you are subject to mandatory registration for a period of 15 years.
The circumstances of the offending
10Counsel for the prosecution tendered a document headed 'Summary of prosecution opening for plea', dated 24 October 2022 (Exhibit 1) and I was informed by your counsel that you agree with the contents of such document. In particular, I note the following and I do this by dot point:
· You are presently 55 years old, having been born on 8 July 1967. At the time of the offending,[4] you were 53 to 54 years old.
[4]Which is alleged to be a date between 1 July 2021 and 31 August 2021.
· At the time of the subject offending, you resided with your daughter, Sarah Beardsmore, who is the complainant. Sarah was born on 19 September 2003 and was aged at the time of the offending somewhere between 17 years and nine months and to 17 years, 11 months, bearing in mind the pleading of the charge on the indictment.
· You also have a son, Oscar Beardsmore[5], who is approximately 20 years of age. Both you, your daughter, and your son have intellectual disabilities. In particular, at the time of the offending the complainant was attending a special school.
[5] A pseudonym.
· Following the death of their mother, the complainant and her brother moved in with their maternal grandparents. In November 2020, you expressed a wish to live with your children in a family home and, as a result, the maternal grandparents finally sourced a family home for you and the children to reside together. Such residence took place in January 2021.
· On 6 September 2021, a friend of the complainant notified staff at her school of a conversation that he had had with the complainant that related to sexual offending between the complainant and you. The school, in turn, notified police.
· Sometime in 2021, another friend of the complainant engaged in a conversation with her, whereby the complainant told the friend she had engaged in consensual sexual intercourse with you.
· On Tuesday, 7 September 2021, a VARE interview was conducted with the complainant, wherein she disclosed an isolated incident where she and you engaged in consensual sexual intercourse at the family home.
· On Tuesday, 7 September 2021, you were arrested by police and subsequently interviewed at the Warragul police complex. At that time, you made full admissions to the allegation made by the complainant in her VARE statement. You were subsequently remanded in custody.
· The offending involved a single occasion between July and August 2021, in your bedroom, where you both engaged in kissing and consensual penile-vaginal sex.
· Such event occurred during the day and at a time when the complainant's brother and your son Oscar was not home. The complainant was naked on your bed and it was the first time in her life she had engaged in sexual intercourse.
· During the VARE, the complainant disclosed that in your bedroom you both engaged in kissing and that the complainant saw your penis, which was put into her vagina and it felt 'all right'. The complainant stated that your penis was in her vagina for about five minutes and then the encounter stopped. During such time you did not say anything then or afterwards.
· The complainant stated that it was your idea to engage in sexual intercourse, but she could not recall the specific conversation. However, when you were interviewed, you confirmed there was an isolated incident in the family home in the month or months prior to your arrest, where you and the complainant engaged in consensual sexual intercourse. You stated the incident occurred just before night-time and began while you were both seated on the couch in the living room of your family home. You stated that the complainant asked you to come into her room and you made mention of the complainant's elevated hormones being a cause. Whereas you believe the complainant initiated the sexual activity, it is to be noted that the matter has resolved on the basis that it cannot be said which party did initiate the incident.
· You were unsure whether you ejaculated and went on to explain that you had had a vasectomy after Sarah was born, which you understood made you incapable of impregnating a woman. You also stated that you believed a vasectomy would also result in you being unable to produce ejaculate at all.
· You stated further that you thought the encounter would be as simple as a cuddle and kiss and it had never occurred on any previous occasions. You explained it had been a while since you had been with your children (noting it had been five years since you had been separated from your wife) and able to spend time with your children.
· You stated that the cuddling and kissing between you was limited to kissing on the lips only.
· You did state that you believed the incident was unlawful and that 'you should not do it with your kids' and also agreed it was unlawful to engage in sexual encounters with one's own children.
· You explained that you did not use a condom while having intercourse with the complainant because you believed you could not have children because of undergoing the vasectomy surgery.
11Counsel for the prosecution set out a chronology of events in Exhibit 1. In particular, it is to be noted that those acting for you obtained expert opinion as to whether or not you were 'fit to plead' and, on 6 April 2022, those acting for you confirmed that there was no issue about your fitness to plead.
12A committal mention on 14 April 2022 was adjourned in order for your legal advisers to obtain further instructions and, on 4 May 2022, those acting for you made an offer to resolve, which was accepted by those acting for the prosecution on 11 May 2022.
13You have been on remand since your arrest on 7 September 2021 and I am informed by your counsel that this is your first experience with the criminal justice system and being in custody. I was informed by counsel for the prosecution at the plea hearing on 17 November 2022 that you had been on remand for 436 days, not including the date of the plea hearing. Furthermore, there have been no bail applications over this period of time.
14You have no prior convictions for any type of offending.
Your personal circumstances and background
15Your counsel tendered the following documents:
(a) Outline of defence submissions dated 14 November 2022 (Exhibit A);
(b) A character reference dated 9 November 2022 (Exhibit B) from one of your younger brothers, Mr Leon Beardsmore[6]. In that document, he asserts that you have had some 'ups and downs and struggles over the years through [your] life' and have been brought up in a single-parent family with your father and the help of the family. He also notes that you have a learning disability and has made your upbringing difficult and hard at times.
Notwithstanding, he notes that you have always had employment at various positions, such as working for a sanitary company, greenskeeper at a golf course and odd maintenance jobs of gardening and mowing lawns and that you have always been a reliable, hardworking and trustworthy person.
Furthermore, he notes that you have been involved in community sports such as lawn bowls, golf and tenpin bowling and have been a valuable team member, bringing your positive attitude and fun-loving personality.
In particular he notes that if you were given a 'second chance' that the subject offending would be a one-off incident from which you will learn lessons to use from here onwards. In particular, your brother notes that when released from custody you can stay with him until the National Disability Insurance Agency (that is the NDIS) can organise living arrangements for you;
(c) A letter from the NDIS, dated 11 November 2022, wherein is attached a plan pursuant to the scheme to commence on 11 November 2022 and be reviewed on 10 November 2024 and various moneys have been set aside to assist in supporting your current disability-related needs;
(d) A neuropsychological report from the consultant clinical neurological psychologist Mr Martin Jackson, who assessed you on 15 March 2022 and reported on 1 April 2022. Mr Jackson also supplied a supplementary report dated 8 July 2022 (both of those documents make up Exhibit D).
The purpose of the neurological psychological assessment was essentially to determine whether you were fit to stand trial and to make an assessment of your current cognitive profile and to obtain opinions as to whether there was any evidence of a cognitive impairment due to any cause. Such assessment was undertaken at the Hopkins Correctional Centre in Ararat;
(e) Report from the forensic psychologist, Dr Dion Gee, who assessed you at the Hopkins Correctional Centre on behalf of Legal Aid on 16 September 2022 (Exhibit G);
(f) A document headed 'Standard sentence - penalties imposed' (Exhibit F).
[6] A pseudonym
16Partly based on some of the documents which were tendered on your behalf and partly based on various other submissions made to me by your counsel, I note the following, again dot points:
· As I have already recorded, you are presently 55 years old, having been born on 8 July 1962, and your parents were based in Gippsland, Victoria. Your parents had four sons in total, with you being the second son. You have an older brother, who is approximately five years older than you, and younger twin brothers, who are approximately five years younger than you. Your mother left the family after the birth of your youngest brothers when they were aged about a year old, dropping all of you at an orphanage, after which your father retrieved you. The family has had no contact with her since that time and it is to be understood that she died approximately 10 years ago.
· You resided and were brought up in the Gippsland/Latrobe Valley region for most of your life, being raised by your father with the support of his own parents and in particular your paternal grandfather, who was of great assistance to your family. You were close to your father, who died in late 2019.
· Although you struggled to provide details of your early childhood, you did deny ever being a victim of various forms of abuse or neglect in your formative years.
· You initially attended Primary School until Grade 2 and thereafter enrolled in a Special School, where you enjoyed the social aspect of schooling and interacted well with others. You became eligible for an invalid pension, now referred to as a disability support pension, on account of your intellectual disability in 1983.
· You left school at or near the age of 17. You are literate but have limited numeracy skills.
· Since leaving school, you have held paid employment intermittently through your life and such roles that you have held have been obtained either through the support of your family or a job service provider who has been aware of your intellectual disability.
· In particular, over the years you have been employed in the following roles:
ꟷ night fill work and trolley collection at a supermarket
ꟷ farmhand on family farm (mowing lawns and weeding)
ꟷ cleaning with a medical waste company (emptying sanitising bins)
ꟷ retrieving balls at a golf range
ꟷ cleaning role for a service station.
· Over the years, you have been engaged in some sports in the community including local football as an umpire, playing golf, tenpin bowling and lawn bowls.
· In about 1994, you met your late wife, Joanne Beardsmore[7], when you were both working in a supported workshop for persons with an intellectual disability. You married in 1996 and had two children from that relationship, your son Oscar, now aged 21 and the complainant Sarah, now aged 19.
[7] A pseudonym.
· You, your wife and your children lived together in a family home for approximately 13 years until the relationship between you and your wife broke down in 2016. Following such breakdown, your wife continued to live in the family home with the children and you moved into a share house nearby, to remain in contact with the children. During this period of time, you attended the home regularly and tried to assist the family by mowing the lawn and doing tasks around the house.
· This arrangement continued until about mid-2019, when your estranged wife became very unwell with cancer and ultimately died on 10 September 2019.
· When your estranged wife became ill, your children moved out of the house and began living with their maternal grandparents.
· Your estranged wife's death occurred just three months after the death of your father and you considered that both she and your father were the two most important people in your life.
· Following the death of your wife, her parents obtained a home for you and their grandchildren, that is Oscar and Sarah Beardsmore, nearby so that you could all live together.
· As a child, you had a pin inserted in your leg related to a broken leg, but putting that aside there has been no other known or ongoing physical health conditions.
· During your period of incarceration, there have been no known prison incidents and you work in a role in the wood manufacturing industries six days a week from 8 am to 3.30 pm. You have also enrolled in various courses that have been available to you on remand, but your engagement in such courses is impacted by your intellectual disability.
· Since your arrest and remand, there has been neither any contact with your children or visits from other family members owing to COVID-19 restrictions and you have only had phone contact with one family member regularly, your brother Leon, on Sundays. Your brothers remain supportive of you and in particular your brother Leon assists you with a number of personal matters, such as paying bills.
· As noted, an application for assistance under the NDIS has been made and approved and a functional capacity assessment will be made in coming weeks and the commencement and scope of such report will only be available upon your release from custody.
· Again, as already noted in the reference from Mr Leon Beardsmore, you may live with him on your release while the NDIS arrange appropriate accommodation to be organised.
The psychological evidence
17As I have already recorded, two experts assessed you for the purposes of this proceeding:
(a) Mr Martin Jackson, a neuropsychologist, who assessed you initially on 15 March 2022 in order to primarily assess your fitness to stand trial and subsequently on 29 June 2022 in relation to issues specific to sentencing. Mr Jackson sets out various opinions in his reports dated 1 April and 8 July 2022;
(b) Mr Dion Gee, a forensic psychologist, who assessed you on 16 September 2020 and who also set out various opinions relevant to sentencing in his report dated 27 June 2022.
18Both Mr Jackson and Dr Gee are of the opinion that you have an intellectual disability that was present at the time of the offending and is permanent. In particular, it was stated:
'Mr Beardsmore continues to labour under an enduring and life-long neurodevelopmental disorder, clearly meeting the ICD-11/DM-ID-2 diagnostic criteria for a "Disorder of intellectual development: mild(sic)." (See report of Dr Gee, p4, paragraph 8);
and:
'… Mr Beardsmore has a neurodevelopmental disorder with a longstanding mild intellectual disability … .
'… He has always had these cognitive impairments and will continue to have so in to the future.
'… Mr Beardsmore was diagnosed as a child … He would have been functioning at the same level as he is functioning now at the time of the offending'. (See supplementary report of Mr Jackson at p3.)
19It was noted by Mr Jackson that the impact of the intellectual disability on daily functioning includes:
ꟷ the capacity to live in the community successfully, albeit with the significant support of family and/or support services
ꟷ illiteracies and difficulties with numeracy
ꟷ you struggle to follow what people say unless things are expressed in simple and concrete terms
ꟷ you require repetition and structure to learn and retain information
ꟷ you have difficulty doing two things at the same time
ꟷ you think in a concrete way and have difficulty working out solutions (see generally the report of Mr Jackson at pp3-4).
20A comprehensive neurological examination was conducted on 15 March 2022 by Mr Jackson and you were deemed to have a full-scale IQ of 64. Across various domains you scored extremely low (verbal comprehension, working memory) and in others you scored low-average (that is perceptual organisation and processing speed).
21In particular your language skills are in the extremely low range, being assessed as a Grade 1 primary school level (see report of Mr Jackson at p9) and your verbal executive skills were noted to be in the extremely low range, as was your mental arithmetic skills (see report of Mr Jackson at p11). In this respect, it was noted the questionnaires around mood were unable to be given due to your poor language skills.
Submissions made by your counsel on your behalf
22It was submitted by your counsel that the opinions expressed by the psychologists provide an evidentiary basis for the court to sentence you in accordance with principles enunciated in Muldrock v R (2011) 244 CLR 120 and R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
23Your counsel referred to the High Court decision of Muldrock (op cit) and in particular paragraphs [53]-[54], where at the High Court (consisting of French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) stated:
'One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this:[8]
"General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."
'In the same case, Lush J explained the reason for the principle in this way:[9]
"[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community."
[8]See R v Mooney unreported, Victorian Court of Criminal Appeal, 21 June 1978 at 5, cited in R v Anderson [1981] VR 155 at 60
[9]Op cit at pages 160-161
'The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relationship, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.'
24Your counsel submitted that such principles have 'significant force', as your intellectual disability affects your ability to think clearly, make reasoned decisions and appropriate judgment (see report of Mr Jackson dated 8 July 2022 at p4) and it was also noted by your counsel that it was observed that you appear to not fully appreciate the wrongfulness of your conduct. Whilst you can say it was wrong to do what you did, you are unable to explain why this was the case (again, see report of Mr Jackson dated 8 July 2022 at p4).
25In his report, Mr Jackson opines there is an underlying clear relationship between your condition and the ability to analyse the situation and to conclude that you should not be engaging in the subject behaviour (see report of Mr Jackson dated 8 July 2022 at p4). Your counsel notes that although Dr Gee did not observe a direct causal connection between the impairment and the offence, Dr Gee opines that the impairment may have predisposed you to act in the way that you did at the time of the offending (see report of Dr Gee dated 27 September 2022 at paragraph 13).
26It was submitted that having regard to the evidence above the court can be satisfied that there is a realistic connection between your impairment and the offending and the court can conclude that your moral culpability in respect of such offending is reduced. In this way, it was submitted that this should impact on the Court's assessment as to what is considered as just punishment and the need for denunciation. In particular, reference was made to the recent Court of Appeal decision of Levi Langton v The Queen [2022] VSCA 79 at [33] where the Court of Appeal stated in relation to principle 1 set out in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269:
'Where reliance is placed on the first principle, concerning moral culpability, the question for the Court is whether the evidence establishes on the balance of probabilities that the impairment of mental functioning contributed to the offending in such a way as to render the offender less blameworthy for the offending than would otherwise have been the case. This is generally (but not always) treated as an issue of causation, namely whether there is a causal link or connection between the impairment of mental functioning and the offending. But it may also be sufficient that there is a realistic connection between the two, without necessarily establishing causation.'
27It is useful to refer to Verdins (op cit), and in particular to paragraph [32], which sets out the so-called Verdins principles:
“Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment”.
28It was also submitted by your counsel that your impairment has a direct bearing on the kind of sentence that is imposed and the conditions under which it should be served. In particular, it was submitted that:
(a) Further custody would act to reinforce your psychological escape/avoidant behaviours and would increase your potential for institutionalisation (see report of Dr Gee dated 27 September 2022, page 7, paragraph 15).
(b) Based on your risk profile and intellectual disability, group programs operated by Corrections Victoria/Community Corrections may act to increase risk. Instead, you require one-on-one or group-based psycho-education with a suitably experienced psychologist (op cit, page 22, paragraph 60).
(c) You could benefit from intervention around interpersonal relationships, intimate relationships, social-interpersonal connectedness, companionship, and assertiveness (ibid).
(d) A degree of oversight is required to ensure that you obtain a capacity to establish a stable platform from which to advance rehabilitation. The platform must incorporate ongoing monitoring of your mental health, the expansion of stable and prosocial support networks, general activities of daily living and stabilising your home environment and employment (see neurological report of Mr Jackson dated 8 July 2022, page 5).
29It was submitted that in light of your impairment the need for emphasis to be placed on deterrence, both specific and general, may be moderated or eliminated.
30Furthermore, it was submitted that your experience of custody does and will weigh more heavily upon you than a person without your level of impairment. There is also a future risk of deterioration to your mental health and a number of other negative outcomes that have been identified as consequences of further imprisonment. In particular, reference again is made to the following:
(a) Over recent years you have struggled with your mental health against a background of the loss of your wife and father and your entry into custody. Dr Gee opines that you have met the diagnostic criteria for single episode depressive disorder: mild (see report of Dr Gee of 27 September 2022 at p4, paragraph 8). You have been prescribed antidepressant/anti‑anxiety medication in custody (Lexapro) for symptoms you have experienced in custody.
(b) Mr Jackson opines that your intellectual disability and associated impairments are likely to adversely affect your ability to cope with imprisonment. You have exhibited anxiety and depressive symptoms in the custodial setting. Furthermore, your language skills put you at risk of getting into trouble with other prisoners or prison staff and you are at high risk of being used by other prisoners to do their 'dirty work' and potentially be placed at risk of harm (see report of Mr Jackson dated 8 July 2022 at p5).
(c) Dr Gee opines that incarceration would likely result in a deterioration in your mental health, vulnerability toward exploitation and difficulty in accessing services and would elevate your distress.
Other mitigating factors relevant to your sentence
31In particular, your counsel referred to the following matters:
(a) Your character
It was submitted that at the time of the offending you were a man of 53 years who had maintained various forms of employment, engaged in prosocial activities, and had no criminal history. It was submitted that the court can make a positive finding that you were previously of good character and it was also to be noted that s5AA of the Sentencing Act should not apply.
(b) Plea of guilty
When you were interviewed you made full admissions in relation to the offending and, following an assessment of your capacity to plead, you indicated your intention to plead guilty to the offence at the earliest reasonable opportunity. This obviated the need for any witness to be called to give evidence and the need for any committal hearing. In particular, your counsel submitted the following:
(i)Your entering into a plea of guilty can be seen as some evidence of your acceptance of the wrongfulness of your conduct, an indication of remorse and a willingness to facilitate the course of justice. Reference was made to Phillips v The Queen.[10]
(ii)Such a plea has utilitarian value in that it saves the cost and time of a trial, which of course would involve evidence being given by your daughter.
(iii)Such a plea was entered into when the ordinary operation of the court had been affected by the COVID‑19 pandemic and such a plea should attract an 'actual and palpable amelioration of sentence' (see Worboyes v R).[11]
[10] [2012] VSCA 140 at [46]
[11][2021] VSCA 169, [35]
(c) Remorse
It was submitted by your counsel that having regard to your intellectual disability, the extent to which you can express yourself verbally was compromised. He noted that you present with “shallow remorse as a result”, but this, so it was submitted, is not surprising given your mild intellectual disability and associated cognitive impairment (see report of Mr Jackson dated 8 July 2022 at page 6).
Your counsel also submitted that you have made admissions to the offending and have indicated that you will not repeat the offending behaviour (see p6 of Mr Jackson's report) and that you want the court to know you are sorry you did it (see report of Dr Gee dated 27 September 2022, page 16, paragraph 4).
(d) Burden of custody in the context of the COVID‑19 pandemic
It was submitted by your counsel that the sanction of imprisonment has been additionally burdensome upon you due to the increasingly onerous conditions in custodial settings that have been present on account of the COVID‑19 pandemic. You have spent your time in custody at either the Metropolitan Remand Centre or the Hopkins Correctional Centre. As a result of the pandemic your experience of custody has been subject to increased lockdowns, quarantine periods and restrictions on prisoner access both to family able to visit you and also to various programs.
(e) Risk of reoffending
Your counsel submitted that Dr Gee engaged in a comprehensive and evidence-based risk assessment of you on the issue of your likelihood of reoffending. Dr Gee was of the opinion that you present as a “low risk of reoffending” (see report of Dr Gee dated 27 September 2022, page 4, paragraph 8). Your counsel noted that although Mr Jackson did not conduct a formal risk assessment, he was of the opinion that your risk of recidivism was “very low” (see report of Mr Jackson dated 8 July 2022 at page 6).
It was submitted by your counsel that the court can conclude that the likelihood of you reoffending is low and accordingly there was less need for emphasis to be placed on relevant sentencing considerations such as specific deterrence and community protection.
(f) Prospects of rehabilitation
It was submitted by your counsel that if you are afforded “an opportunity to access/engage in suitably tailored psychological/psychosocial intervention/psycho-education in a coordinated and timely manner you would present a good prognosis for rehabilitation” (see report of Dr Gee dated 27 September 2022, page 7, paragraph 14).
32In coming to an appropriate sentence your counsel submitted, correctly in my view, that the court must have regard to the maximum penalty prescribed for the offence (25 years' imprisonment) and the standard sentence (10 years). In this respect the court must have regard to the objective factors affecting the relative seriousness of the offence wholly by reference to the nature of the offending (see s5A(3)(b) of the Sentencing Act 1991).
33Your counsel put forward the following matters as relevant to the assessment of the objective gravity of your offending:
(i) absence of premeditation/planning
(ii) age of the complainant - 17 years and nine or 11 months at the time of the offending
(iii) breach of trust and ostensible consent. Your counsel notes that all examples of the offence exhibit a 'breach of trust by a parent and no example is ever lawful', but goes on to submit that the subject offending should be viewed against a background of ostensible consent
(iv) the complainant had an intellectual disability, but there is no evidence that this motivated the offending and it cannot be said that you engaged in the act because of that vulnerability or sought to exert your physical power or dominant power over her
(v) single instance of penetration of short duration
(vi) absence of threats, 'grooming' behaviour and coercion to either procure the offence or to conceal the fact that it had occurred
(vii) it was submitted that sexual penetration of a child is considered a violent offence; however, it was submitted that the circumstances of the subject offending can be 'easily distinguished from examples where brazen violence and/or continuing with the act in the face of protests from the victim is a feature'. Furthermore, there are examples where sometimes there is the infliction of physical pain, but here that was absent
(viii) the offending involved penile-vaginal penetration, but there has been no pregnancy occurring or any sexually transmitted disease contracted by the complainant
(ix) there were no attempts to catalogue the offending or humiliate the complainant
(x) the offending did not occur in proximity to or with other family members or others.
34Having regard to these objective circumstances (and acknowledging that this assessment is relevant to the court's consideration of the standard sentence), it was submitted that the offending is an example which ought to be considered as an 'outlier' and one that falls beneath the mid-range or worst category examples cited and/or reviewed in DPP v Dalgliesh (a pseudonym).[12]
[12] [2017] VSCA 360
Standard sentencing considerations
35I refer to s5A and s5B of the Sentencing Act 1991, which set out various matters relevant to a standard sentence. Although the standard sentencing scheme has been applied by a number of judges in the County Court, it was first dealt with in the Supreme Court by Champion J in R v Brown.[13] That decision was appealed in Brown v R,[14] wherein a five-judge Bench of the Court of Appeal (consisting of Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) explained the operation of the new provisions. The Court of Appeal largely upheld the reasoning of Champion J in Brown[15] at first instance. Some assistance is also obtained from the High Court decision of Muldrock v R.[16]
[13] [2018] VSC 742
[14] [2019] VSCA 286
[15]Op cit
[16] (2011) 244 CLR 120
36I refer to the Court of Appeal decision in Brown[17] at paragraphs 4 to 7, wherein the Court of Appeal stated:
[17]Op cit
'For the most part, the provisions are clear and the approach required is not in dispute. The key new requirement is that a judge when sentencing for a "standard sentence offence" must "take the standard sentence into account as one of the factors relevant to sentencing". This requirement:
is to be treated as a "legislative guidepost", having the same function as the maximum penalty;
does not affect the established "instinctive synthesis" approach to sentencing;
does not require or permit "two-stage sentencing"; and does not otherwise affect the matters which the court may, or must, take into account in sentencing.
The only area of uncertainty concerns the judge's assessment of the seriousness of the offence before the court ("the subject offence"). The "standard sentence" is defined as:
the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. [See s5A(1)(b) of the Sentencing Act 1991.]
The provisions then specify that those "objective factors" are to be determined:
(a)without reference to matters personal to a particular offender or class of offenders; and
(b)wholly by reference to the nature of the offending. [See s5A(3) of the Sentencing Act 1991]
It is not in doubt that those specifications apply to the identification of the hypothetical "middle of the range" offence. The question which was explored at the hearing of these appeals was whether the new scheme required (or permitted) the sentencing judge to assess the seriousness of the subject offence "taking into account only the objective factors" as thus defined.
The submission of senior counsel for the Director was that, on their proper construction, the scheme provisions neither required nor permitted such an assessment. For the reasons set out in Part I, we would uphold that submission. In our opinion, the standard sentence provisions do not have any bearing on the judge's obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of "objective factors". Those constraints are referable only to the assessment which gives content to the hypothetical offence as an offence "in the middle of the range of seriousness".'
(My emphasis.)
37I refer to the matter of Brown[18] at first instance, where Champion J stated, at paragraphs [96]-[97] and paragraph [99], as follows:
“… Matters personal to a particular offender such as an offender's age, state of health, family circumstances, employment and general background, are matters that bear little or no explanatory or relevant connection to the assessment of the nature of the offending.
'However, matters such as the mental illness of an offender, the motivation for carrying out the offending, provocation, and aspects of duress, are examples of factors that can have a relevant causal connection to the offending, such that they are fundamental qualities of the offence. Such matters, by their fundamental nature, in my opinion can be relevant the assessment of the objective seriousness of the offence.
'In my view, the correct approach to take under s 5A(3) of the Act is for a sentencing judge to make an assessment of what factors causally affect the relative seriousness of the offence, complying with the prescribed language and structure of the legislation.'
[18] Op cit
38I also refer to Lugo (A Pseudonym) v R,[19] a Victorian Court of Appeal decision constituted by five judges. At paragraphs [25]- [26] the court stated:
'For the reasons given by this Court in Brown v The Queen, [[2019] VSCA 286] that comparative assessment was neither authorised nor required by the standard sentence provisions. The judge's obligation to assess the seriousness of the subject offence was, the Court said, unaffected by the standard sentence provisions [at [7]]. Judges sentencing for standard sentence offences 'should continue to assess offence seriousness in the conventional way, taking into account both objective gravity and moral culpability [at [55]].
'The sentencing judge in R v Brown [(op cit)] had, likewise, undertaken a comparative assessment "taking into account only the objective factors". The Court concluded that, although his Honour had gone beyond what was required by the provisions, this misapprehension had not affected his Honour's assessment of the seriousness of the offending … “.
(My emphasis.)
[19] [2020] VSCA 7
39I also refer to s11A of the Sentencing Act 1991 which directs, as to the process of the fixing a non-parole period for a standard sentence offence or in respect of a total effective sentence imposed in respect of two or more sentences, at least one of which is for a standard sentence offence (see s11A(1)).
40Section 11A(4) of the Sentencing Act 1991 provides that unless a court considers that it is in the interest of justice not to do so the court must fix a non-parole period for at least relevantly 70 per cent of the relevant term if that term is a term of 20 years or more or 60 per cent of the relevant term if that term is a term of less than 20 years. The 'relevant term' referred to in s11A(5) is defined to mean, inter alia, the total effective sentence referred to in ss(1)(b).
41In Brown,[20] the Court of Appeal also examined the standard non-parole period scheme and in particular referred to the High Court decision of Muldrock v R,[21] and in particular, paragraphs 27 to 29. The Court of Appeal then stated at pages 9 to 10 that:
[20] Op cit
[21] Op cit
“These passages may be distilled into a number of propositions, as follows:
1.The standard non-parole period is a "legislative guidepost", in the same way as the maximum sentence is.
2.In order for it to serve as a guidepost, meaningful content must be given to the legislature's specification of the standard non-parole period as the non-parole period "for an offence in the middle of the range of objective seriousness".
3.Giving meaningful content to that specification requires that "objective seriousness" be assessed:
(a) "without reference to matters personal to a particular offender or class of offenders"; and
(b) "wholly by reference to the nature of the offending".
4.The sentencing court is neither required nor permitted to assess whether the subject offence falls within "the middle of the range of objective seriousness" by comparison with "an hypothesised offence answering that description".
5.The requirement to give reasons for fixing a non-parole period above or below the standard non-parole period does not require the judge to "classify the objective seriousness of the offending".
6.The judge must, however, identify all of the facts, matters and circumstances which bear on the conclusion reached as to the appropriate sentence.
'In the High Court's view, therefore, the standard non-parole period provisions required only one assessment of "objective seriousness". That was the assessment which was necessary in order to give "meaningful content" to the legislative description of the "hypothetical offence" as an offence "in the middle of the range of objective seriousness". It was that assessment, the court said, which must be undertaken "without reference to matters personal to a particular offender or class of offenders" and "wholly by reference to the nature of the offending’.”
(My emphasis.)
Your sentence
42Your counsel ultimately submitted that taking into account the various matters to which reference has been made, and in particular taking account of such matters involving general and specific deterrence, denunciation, just punishment and community protection, the sentence can be moderated for the reasons which have been advanced. Furthermore, and in addition, there are other powerful mitigating factors to be taken into account in the circumstances of this matter.
43Your counsel submitted that an appropriate sentence would be one of time served: that is you should be released immediately.
44Counsel for the prosecution, fairly and appropriately in my view, accepted that your plea was an 'early plea'; that you had demonstrated remorse commencing immediately after your arrest; and that your moral culpability was reduced, given your pre-existing mental impairment, which would impact on various factors making up an appropriate sentence. In this respect, counsel for the prosecution accepted that Verdins 1, 2, and 5, and the principles enunciated in Muldrock, have application.
45Ultimately, counsel for the prosecution submitted that she does not have 'any issue' with the very detailed submissions put forward by your counsel as to the appropriate sentence in this matter.
46However, counsel for the prosecution informed the court that even allowing for acceptance of all the matters which have been submitted by your counsel a disposition involving only 'time served' was not sufficient, on her instructions.
Conclusion
47You have pleaded guilty to the offence of sexual penetration of a child or lineal descendant, consisting of one episode of penile-vaginal sex with the complainant at some time between 1 July 2021 and 31 August 2021.
48The offence of sexual penetration of a child or lineal descendant is a serious offence, as is made clear by the maximum penalty for such offence, being 25 years' imprisonment. Any sexual offence involving a child is inherently serious.
49Of course, the objective seriousness of any particular offence varies with the circumstances surrounding the offence.
50During the course of a very well-presented plea on your behalf, your counsel described the circumstances surrounding the subject offending as an 'outlier'. It is an apt description, bearing in mind the following:
(a) at the time of the offending, you were 55 years old and had suffered a lifelong intellectual impairment. Although you were assessed to be fit to stand trial for such offence, the evidence before the court was that a comprehensive neurological examination conducted on 15 March 2022 by the neuropsychologist Mr Jackson deemed you to have a full-scale IQ of 64, together with extremely low verbal comprehension and working memory and low-average perceptual organisation and processing speed. In particular, your language skills are in the extremely low range, being assessed as at Grade 1 primary school level. As was noted, although you stated that it was wrong to have sex with the complainant, you could not really go on and explain why;
(b) the complainant was your daughter, Sarah Beardsmore, who was born on 19 September 2003 and was aged at the time of the offending somewhere between 17 years and nine months and 17 years 11 months. Being under the age of 18 years at the time of the offence brings into play the standard sentence provisions and further causes the offence to be defined as a 'category 1 offence' and, being such an offence, a court is not permitted to order a combined sentence consisting of imprisonment and a community correction order;
(c) the sexual act was completely consensual and it is accepted that it is unclear whether you or your daughter precipitated the incident. As pointed out by your counsel, there is no evidence whatsoever that the offending was motivated by the complainant's intellectual disability or you engaged in the act because of her vulnerability or sought to assert your physical power or dominant position over your daughter. Similarly, there is no evidence of threats, grooming behaviour or coercion either to procure the offence or conceal the fact that it had occurred.
51I am satisfied that your mental impairment, as described by the psychologists and whose evidence I accept, is relevant to your moral culpability, whether it be an application of the principles enunciated in Muldrock or principle No 1 in Verdins. I accept the reasoning process set out in the submissions of your counsel that your moral culpability is reduced and accordingly the court's assessment of what is considered to be just punishment and the need for denunciation is reduced. Furthermore, I am also of the view that, given such impairment, both general and specific deterrence should be moderated.
52Also I consider, given your mental impairment, that you would find life in prison harder than a person who does not have such impairment and I do so for the reasons expressed by the psychologists and submitted your behalf by your counsel.
53Beyond these matters, I also consider there is a powerful array of mitigating factors which impact on your sentence. In particular, I accept the submissions of your counsel in relation to the consequences of your early plea of guilty, your previous good character and prosocial activities with no history of any criminal activity up until this event, your clear remorse about such events to the extent that you are capable of expressing such remorse, together with your full and frank admissions made early to investigating officers. I also consider that the burden of custody in the context of the COVID‑19 pandemic attracts consideration given that it has caused you to have infrequent contact with your family and has reduced your capacity to engage in various activities which would otherwise be available in prison.
54In particular, I consider your risk of reoffending is of a low or very low risk, consistent with the evidence of Dr Gee and Mr Jackson. I also accept the submissions made by your counsel that the objective circumstances in this matter, relevant in determining an appropriate penalty and relevant to the standard sentence, do fall beneath the mid-range or worst category examples cited or reviewed in DPP v Dalgliesh [2017] VSCA 360.
55I intend to convict you of the offence and sentence you to a period of imprisonment with a non-parole period.
56Please be upstanding.
(a) in relation to Charge 1 on the indictment, you are convicted and sentenced to two years, six months' imprisonment with a non-parole period of 18 months;
(b) I declare that you have served, but not including this day, 463 days in pre‑sentence detention and that such period should be administratively deducted from the sentence ordered against you;
(c) I order that you are to be registered as a 'registrable offender' under the provisions of the Sex Offenders Registration Act 2004 and will be a registrable offender for a period of 15 years.
(d) Pursuant to s6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty I would have sentenced you to four years' imprisonment with a non-parole period of 22 months.
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